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Family Law > Family Law > Flashcards

Family Law Flashcards

1
Q

State Marriage Coercion

A

Gov. offers financial incentives to get married > family units offer the most stability from gov. POV

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2
Q

Obergerfell v. Hodges

A

Fundamental right to marriage. Gave homosexual couples the right to a civil, but not religious marriage. All states have to recognize same-sex marriages performed in other states.

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3
Q

Fundamental Right to Marriage

A

Four principles:

  1. right to personal choice to choose life partner
  2. dignity of marriage (“marriage dignifies couples”)
  3. protects children > more stable than just living together
  4. Keystone of social order > benefits of marriage
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4
Q

Obergerfell v. Hodges DISSENT

A

Court ignored democratic process and should have left this to the states to decide.
Majority Response: we’ve debating this for awhile and “fundamental rights may not be submitted to a vote”

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5
Q

Polygamy/Bigamy

A

Prohibited by every state. Marriage to more than one person at a time. Not prosecuted often. Civil marriage with one person and then religious marriage with more people.

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6
Q

Consent (Marriage)

A

General ability to comprehend what you’re doing and the associated duties and responsibilities.
No consent if a party misrepresented a fact that is essential to marriage.

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7
Q

Elements of Marriage

A
  1. Capacity to Consent: very low std and case specific

2. Actually Consent: usually focuses on circumstances and whether parties were under duress, joking, or drunk

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8
Q

Facts Essential to Marriage

A

TEST: You wouldn’t have married this person if you knew the truth about this person.

  • State split b/w objective and subjective.
  • Examples: infertility, intent to have children, inability or unwillingness to have sex.
  • Not Fraud:
    1. Lying about wealth or status
    2. Lying about health
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9
Q

Facts Essential to Marriage: Objective v. Subjective Std

A

Objective: the reasonable person would not have married had they known
Subjective: you would not have married had you known > look at what’s essential to these parties

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10
Q

Annulment After Death

A

Court can annul marriage after someone is dead

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11
Q

“Voidable” Marriage

A

-Capable of being voided
-Marriage exists until it is voided and can only be attacked by the parties themselves
-Marriage can be ratified by parties
-Results in an annulment > cts are increasingly applying divorce law to these annulments
Ex: underage party, duress, drunk

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12
Q

Ratifying a Marriage

A

Either an express oral stmt OR continuing to live as spouses (implicit ratification)

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13
Q

“Void” Marriage

A

-Marriage is invalid from the beginning
-Marriage never existed
-Cannot be ratified
Ex: bigamous, incestous, permanent lack of capacity

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14
Q

Incest

A

Can’t marry family members.
“Infinity prohibitions” : based on relationships created through marriage. Cts are split on whether step family can marry.

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15
Q

Age (Marriage)

A
  • Must be 18
  • Some states allow for underage marriage w/ judge or parent approval (usually when a party is pregnant) but it’s still voidable

Policy: People who marry at a young age are more likely to get a divorce and state wants to preserve marriage.

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16
Q

Formal Marriage: Procedural Requirements

A
  1. License issued by state authorized official

2. Ceremony (solemnization)

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17
Q

Formal Marriage: License

A

Generally there is a waiting period before getting it and applying it. Some states waive waiting period if parties go through counseling.
Majority: if parties forget to get license but go through ceremony and live together, then state will forgive failure to get license. BUT if statute gives consequences for failure to comply then license is req.d and it won’t be forgiven.

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18
Q

Formal Marriage: Ceremony

A

Very flexible std. Proxy marriage is allowed. Almost anyone can preside.
Majority: as long as parties intent to be married is clear then cts will usually forgive failure to go through ceremony.

Policy: ceremony makes parties realize the commitment they are about to make.

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19
Q

Common-Law Marriage

A

Actual marriage.
If parties are just cohabitants, assume their relationship does not have a significant financial dependency unless there is a contract. Assume w/ formal marriage there is a significant fin.L burden at end of marriage.

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20
Q

Common-Law Marriage Elements

A
  1. “Present agreement to marriage” : usually inferred from a holding out
  2. “Holding Out” as married: live together and people in the community think you’re married
    BOP: Clear and convincing evidence
    States recognize C.L. marriage from other states that allow for it.
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21
Q

Common Law Marriage: Montana

A

Requirements:

  1. competent to marry (not otherwise married)
  2. mutual consent to marry (present agreement)
  3. cohabitation and public repute (holding out)
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22
Q

Arguments Against Common Law Marriage

A
  1. It encourages vice and debases marriage > counterarg: usually only arises in death and its messy
  2. Conscription: shouldn’t be married against will > counterarg: present intent is voluntary
  3. complicates record keeping and has ambiguity > counterarg: equities in favor of keeping CLs married, but it’s debatable
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23
Q

Ending a Common Law Marriage

A

Just as married as a formal marriage. If parties break up there needs to be a divorce.

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24
Q

Punitive Spouse Doctrine

A

Equitable Doctrine > judge decides what’s fair, no statutory guidelines like divorce
Elements:
1. marriage ceremony
2. One or both parties have a good faith belief the marriage is valid
-For property/future acquisition of rights, once you know the marriage is not valid then its no longer valid for the doctrine = up to the point of knowing, the marriage is punitive

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25
Q

Ending Punitive Spouse Relationship

A

Punitive spouse is not a legal spouse, so no divorce or annulment is necessary. The marriage does not have a legal status. No C.L. marriage b/c married party is not competent to marry.

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26
Q

Gender Roles in Marriage

A
  • Women are still primary caregivers and take majority of family labor
  • Primary caregiving leads to market disinvestment =s reduced earning capacity
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27
Q

Interspousal Support Obligations

A

Once separated, the husband has a duty to provide support for wife. (1953). Until then, ct won’t do anything b/c doesn’t want to get involved in family matters

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28
Q

Doctrine of Necessaries

A

If husband fails to provide necessaries for wife, wife can go to 3rd party to get necessaries and 3rd party will charge husband. Today its used in medical and nursing home care.
Problems:
-what are necessaries and what quality should they be?
-doesnt apply if wife left husband b/c of her own wrongdoing, but 3rd party can’t know this
-not gender neutral (but it is now)

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29
Q

Divorce: Hist.L Timeline

A

Can you get out of marriage?

  1. No, inescapable commitment
  2. Yes, if 1 party has good reason > fault based > fin.L consequences
  3. Yes, if both parties want out > fin.L consequences
  4. [Current state] Yes, if either party wants out for any or no reason but may have fin.L consequences > no fault divorce
  5. Yes, if either wants out for any reason and no fin.L consequences
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30
Q

Marriage as Contract

A

Marriage is a K b/c it is an exchange of promises that the couple wants the state to enforce. If there are no fin.L consequences or if the marriage is inescapable then not a K. No fault divorce is consistent w/ K law.

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31
Q

Fault Based Divorce

A

A remedy for the innocent against a guilty party.
Reasons: adultery, cruelty, desertion
Most states have retained their fault based divorce systems
Pros: usually no req.d separation period and get to label ex as being at fault

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32
Q

“Limited Divorce”

A

A legal separation. Courts don’t like this b/c then the ct gets pulled into domestic arguments

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33
Q

“Absolute Divorce”

A

An actual divorce

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34
Q

“Mental Cruelty” (Divorce)

A

Fault based divorce. Usually require more cruelty to justify a divorce in longer marriages.

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35
Q

Adultery (Divorce)

A
  • Fault based divorce. Any sexual conduct b/w any gender of parties. Elements:
    1. Inclination
    2. Opportunity
  • BOP: (Maj.) clear and convincing evidence to get alimony
  • Evidence is circumstantial and states have a very high bar that the accusing party has to prove there’s no other innocent explanation for spouse’s actions.
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36
Q

Desertion

A

Willful abandonment of cohabitation that lasts for at least a year.
“Constructive abandonment” : basically not present in marriage even if still living together. Applied to DV > no support in marriage, just abuse.

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37
Q

Defenses Against Fault Based Divorce

A
  1. Recrimination
  2. Provocation
  3. Condonation
  4. Connivance
    Gives parties a “fresh start” w/o the offense hanging over them
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38
Q

Recrimination (Defense to Fault Based Divorce)

A

Both spouses are at fault so there’s no innocent party > neither party can get out of marriage in a fault-based scheme. Cts don’t like this and some limit it just to adultery on both sides.

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39
Q

Provocation (Defense to Fault Based Divorce)

A

Reaction must be proportionate to provocation. “He made me do it!”

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40
Q

Condonation (Defense to Fault Based Divorce)

A

“Yes, I was wrong, but you forgave me.”
-Either explicit (I forgive you) or implicit (living as married). Forgiveness must be voluntary
-Conditional on not committing another fault and good behavior generally > offender shows “conjugal kindness”
-Hightower Case Elements:
1. Can’t repeat same offense AND
2. Offender shows conjugal kindness
adultery charge can be revived to get a divorce if the two conditions aren’t met.
-If party is denying affair then this defense doesn’t work since can’t forgive what is being denied

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41
Q

Connivance

A

Party participated in the other party’s wrongdoing.

Ex. Renting out a hotel room for spouse to cheat in

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42
Q

No-Fault Divorce

A

Introduced by UMDA. “Unilateral Divorce”
Types (2):
1. Pure/Exclusive
2. Hedged/Mixed

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43
Q

Unilateral Divorce

A

Only one party wants the divorce and the other party resists.

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44
Q

UMDA Style No-Fault Divorce

A

Divorce will be granted if there’s an irretrievable breakdown (“a determination that there is no reasonable prospect of reconciliation”) AND

  1. Separated for 180 days OR
  2. Serious marital discord (easy to show by one party saying there’s no hope for marriage)
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45
Q

Pure/Exclusive No Fault

A

Only ground for divorce in state is no-fault AND there is no significant waiting period.

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46
Q

Hedged/Mixed

A

State has both fault and no-fault divorce. No fault has a significant waiting period b/c states are trying to “hedge” against a quick unilateral divorce. Divorce is only quick if its for fault.
Some states: if no-fault is mutual then the waiting period is shorter.

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47
Q

Separation

A

(Frey Case) You can be separated even if living together. Occasional sex does not undue separation. Reconciliation that established husband/wife relationship will reset separation clock.
Separation period starts when separation is initiated by one party.

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48
Q

No-Fault Policy Arguments

A

Part of debate is the effect of divorce on children. Its good for children if parents reconcile.
Argument for longer waiting period: its a cooling off period and takes people out of highly emotional time.

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49
Q

Annulment

A

An equitable action. The marriage must be voidable.
Trend: states are increasingly finding property rights in annulments, but not really finding alimony > use the punitive spouse doctrine if no alimony

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50
Q

Annulment v. Divorce

A

Reasons to get annulment instead:

  • religious reasons
  • alimony from 1st marriage can be revived if the spouse getting alimony gets an annulment for the second marriage
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51
Q

Property and Money in Divorce

A

Three Types:

  1. Property: one time division of assets or access to assets. Might be dischargeable in bankruptcy
  2. Alimony: order to make payments out of future income, freely modifiable. Can’t discharge in bankruptcy
  3. Child Support: payment out of future income. Can’t discharge in bankruptcy
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52
Q

Property in No-Fault Divorce

A

No one is at fault so deal w/ inequities in property fairly since it’s a one time event. Want to limit future entanglements.

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53
Q

Divorce: Property Analysis

A
  1. Determine what regime the state follows > what prop rights apply during marriage and what applies during divorce?
  2. IDENTIFY what’s available for distribution in divorce
  3. VALUE of assets
  4. DISTRIBUTE assets > consider fairness
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54
Q

Divorce: Property Regimes (2)

A
  1. Community Property: minority, western states

2. Common Law States: majority, title theory

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55
Q

Community Property: During Marriage

A

Partnership theory. Any labor by either spouse belongs to the community not individual.
Each spouse owns an undivided half interest in all community property

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56
Q

Definition of Community Property

A

All property acquired during the marriage except gifts or inheritance. Presumption that property acquired during the marriage is community property and goes into the pot.

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57
Q

Common Law: During Marriage

A

Title determines ownership. Focus on the individual.

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58
Q

Community Property: Divorce

A

All property during the marriage goes into the pot for ct to divide. All community property is divided.
Minority: prop. is dist.d equally
Maj.: prop is dist.d equitably [strong presumption 50/50 is equitable]

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59
Q

Common Law: Divorce

A

Two possibilities:
1. (Maj. approach) only marital property is considered > basically community property
2. (Min. approach) Kitchen sink/ hodgepodge > everything goes into pot including gifts and inheritance
Prop is dist.d equitably > TREND two a 50/50 split but not a presumption of it.
Ct has discretion and can be influenced by title ownership.

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60
Q

Kitchen Sink / HodgePodge State

A

Common Law approach to divorce. Minority. Go straight to distribution part of analysis, skip identification.

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61
Q

Separate Property (Divorce)

A

Doesn’t go into pot for division.

  1. All property owned before marriage
  2. All property acquired during marriage from gift or inheritance
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62
Q

Home Equity

A

Value of property (-) mortgage (=) equity

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63
Q

Valuation of Assets (Divorce)

A

Hire a forensic accountant to go through accounts.

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64
Q

Factors of Equitable Distribution

A

Generally b/w
-Contribution
-Need
Factors are in tension w/ each other b/c its possible need goes to one spouse and contribution favors the other spouse > judge has discretion to decide.

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65
Q

Reclassifying Property

A
  1. Exchange Principle
  2. Recharacterized Property:
    a. Gift
    b. Commingling
    c. Transmutation
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66
Q

Exchange Principle (Property)

A

You have a separate property before marriage and during marriage you get rid of that prop and get new prop to replace it.
Ex. Have a car before marriage and then during marriage get rid of car and get a boat instead. Boat stays separate.

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67
Q

Recharacterized (Property)

A

Sep. prop. becomes recharacterized as marital b/c of how owner treats prop. during marriage. Look to the owner’s explicit/implicit intent for sep. prop.
Ex. Combining stones in ring is evidence of intent to make the sep. prop. stones part of marital prop.
Three ways:
1. Gift separate prop to communal pot
2. Commingling sep. prop. in pot of marital prop > sep. prop. is untraceable and becomes marital. Harder to counterarg if mixed for a long time.
3. Transmutation: sep. prop. gets added to marital prop. Defenses available. Ex. adding spouses name to title of sep. prop.

68
Q

Contracting Around Martial v. Separate Prop

A

Can do it w/ a pre-nup. Property rules are just default rules that can be contracted around.

69
Q

Identifying the Marital Home

A

Starts as one spouse’s sep. prop but over the course of the marriage marital contributions are made to it.
Three Types:
1. Hybrid Prop.: prop. is both sep and marital > need an accountant
2. Entirely sep. or entirely martial: arg for reimbursement of sep. prop. put into home
-counter arg transmutation that marital funds were intended as a gift to the sep. prop.
3. Too hard to identify so skip to dist. and do what’s equitable.

70
Q

Increase in Value of Sep. Prop. During Marriage

A
  • Either spouse’s contribution that increased value makes the only the increase marital. Sep. prop. owner’s labor belongs to the marriage during the marriage.
  • Community Property POV
  • Passive increase in value b/c of market = not marital prop.
  • Kitchen Sink: Both increase and original value goes into marital pot
71
Q

Duration of Marriage

A

Begins: marriage ceremony
Ends: states differ; ALI (best): when divorce papers are filed.
Value prop at the latest possible date to be the most fair.

72
Q

Default Rule for Property

A

Once separate, always separate property unless you can recharacterize the assets

73
Q

ALI Classification of Property

A
  • Recharacterization Rule: after a threshold period, sep prop that is brought into marriage should be recharacterized as marital prop. by a certain percentage each year.
  • Avoid this w/ a pre-nup, written intention to not have prop become marital, or if application would be a substantial injustice (like applying rule to family heirlooms).
  • Default rule should be sharing
74
Q

Pension/ Retirement Plan (New Property)

A

Can be marital property is acquired during the marriage. Often hybrid. Governed by ERISA > need a QDRO (qualified domestic relations order) to get around ERISA non-assignment provision

75
Q

Intellectual Property (New Property)

A

Can be marital prop but to the extent the right to that prop was acquired prior to marriage.

76
Q

Professional Degrees (New Property)

A

Not marital property anywhere

77
Q

Collection Rights

A

To make sure CL can collect property payment:

  1. Get life insurance to ensure payment after death
  2. Secure the obligation by getting a lien until it’s paid off
  3. put in settlement provision that interest is applied to payment
78
Q

Social Security Benefits (New Property)

A

Spousal benefits can be collected after 10 years of marriage.

79
Q

Stock Options (New Property)

A

Can be marital property if they are deferred compensation.

80
Q

Business Good Will (New Property)

A

Reputation of the name of the business. Depends on if the spouse leaves the business and it decreases in value. Trying to distinguish b/w goodwill and actual business value.

81
Q

Lottery (New Property)

A

Prizes won during marriage are marital property, but sometimes the ct will ask what was used to buy the tickets.

82
Q

“Equalization Payments” (Property in Divorce)

A

One spouse is req.d to make a lump sum payment to the other spouse but can’t afford to do it in one payment so they make payments twd lump sum over time.

83
Q

Voting Right and Management Shares

A

Can give spouse non-voting share in a business but cannot give voting/controlling/management shares

84
Q

Basis for Successful Appeal (aka Abuse of Discretion) Re: Property Distribution

A

Prop. dist. is so discretionary, it’s hard to win on appeal.
To try:
1. Not looking @ facts
2. Saying something ridiculous on the record
3. One spouse gets 100% of property > judge failed to distribute.
4. Considering fault when law says not to
5. Judge misinterprets statute as req.ing the ct to do something unjust when the law gives the judge wide discretion.
-In C.L. equitable dist. state w/o presumption that 50/50 is fair : look at title of prop. during the marriage

85
Q

Homemakers and Property Distribution

A

Have to show the homemakers contributions actually resulted in acquisition or increase in value of marital prop.
TREND: proposal to put a value on HM services (use min. wage or cost of replacement labor) > counterarg that marriage is an equal partnership so don’t assess what value each party brings to marriage.

86
Q

Marital Fault w/ Property Distribution

A

-15 states allow cts to consider fault for distribution. Ex. “annoying behavior”
-All states allow cts to consider economic fault (party does something to decrease value in marital pot)
> ALI and some states only look back 1 year, other states look at whole length of marriage

87
Q

Fraud/Hiding Assets During Property Dist.

A

Can reopen prop. dist. b/c original dist. was inaccurate b/c of fraud

88
Q

Debts in Property Distribution

A
  • Presumption: Treated like assets > if acquired during the marriage, it’s treated like marital debt.
  • Exception: student loans are individual.
  • Joint debt: if divorce decree says A has to pay for car debt, creditor can still come after B b/c both B and C signed for car > refinance debt at time of divorce to avoid this
89
Q

Bankruptcy

A
  • Cannot discharge support obligations.
  • Can maybe discharge prop. equalization depending on what type of bankruptcy is filed
  • Bankruptcy code allows cts to make its own decision act what is or isn’t prop. for purposes of discharge
  • Starting point for ct: if divorce decree calls something a prop, ct should start w/ presumption that its prop and then go from there, but its not dispositive
90
Q

Alimony (Policy and Problems)

A

Problems:

  • middle class issue > rules/principles apply to all families no matter length of marriage, # of children, etc.
  • gender neutral but most of it ends up going to women prob b/c of marital roles
  • uncommon
  • made more sense back when coverture was a thing
  • very discretionary
  • BUT can sometimes be the only way to make up for inequalities if marriage has no property > dont get rid of it, make it work better

Policy:
-starting point in no-fault is that alimony is a bad idea b/c it acts like a punishment > if any is ordered it should be short term w/ goal of being rehabilitative

91
Q

“Divorce Revolution”

A

Reported that std of living went down for women and children after divorce but went up for men. Homemakers were hardest hit and fed task forces were established.

92
Q

“Alimony Reform Group” (TREND)

A

Goal is to popularize alimony horror stories and get anti alimony laws passed. Claims permanent alimony is harmful.

93
Q

“Permanent” Alimony

A

Doesn’t exist, b/c alimony is freely modifiable.

94
Q

Types of Alimony

A
  1. Indefinite
  2. Fixed Term
  3. Transitional: bridge the gap
  4. Pendente Lite: temp alimony during time divorce is pending
95
Q

Indefinite Alimony

A
  • Alimony order doesn’t say how long it lasts
  • Very rare
  • Long marriages w/ spouses who have little hope of rehabbing
96
Q

Fixed Term Alimony

A

-Order lasts for a specified amount of time
-Often order will specify its purpose like rehab of needy spouse or reimbursement for contributions made in marriage
-Typically 3-5 years
Types:
> pendente lite
> rehab
> reimbursement
> other

97
Q

Alimony Analysis

A

Highly discretionary so its unpredictable and uncertain. Sometimes marital fault is considered.

  1. Eligibility > only if needy (lack of resources and lack of ability to support self)
  2. Value > discretion of trial ct unless there are guidelines
  3. Duration > discretion of trial ct unless there are guidelines
98
Q

Rational for Alimony

A
  1. Reliance: returned to pre-K position and reimbursed for out-of-pocket costs
  2. Restitution: req. wrongdoer to reimburse other spouse for benefits conferred > but can end up w/ the wrong party paying alimony
  3. Expectation: marriage is a partnership and one partner should buy out other partner for contributions
99
Q

ALI Alimony

A
  • Reliance model
  • Preference for fixed term alimony but if the marriage lasted more than 20 years and spouse is older then 40, the alimony should be indefinite
  • Consider std of living
  • Awards are cumulative so can get awards for std of living, being the primary caregiver and restitution, but can’t exceed a certain cap
100
Q

ALI Alimony Std of Living

A
  1. Entitlement to alimony if marriage lasted for @ least minimum duration and there is an income disparity
  2. Value of award
  3. Duration of award
101
Q

“Need” for Alimony and Divorce

A

A relative term and partly based on the std of living during marriage

102
Q

Enforcing Alimony

A

Bring a contempt of court action to get payment

103
Q

Modifying Alimony

A

Reduce, Increase, or suspend.
-Default RULE: upon a substantial or material change of the parties. Change must be involuntary
-Usually need precise and specific language in the settlement to be able to modify
Ex. early retirement is a choice so no modification, but if payor takes normal retirement then it will likely be modified.
Ex. Payor wins the lottery > no increase b/c payee’s need has not increased

104
Q

Terminating Alimony

A

Gen. RULE: 4 events that terminate alimony:

  1. death of either party
  2. recipients remarriage
  3. Recipients cohabitations
  4. payor retirement
105
Q

Terminating Alimony: Cohabitation

A

Minority: “automatic termination” > terminates w/o assessing if alimony was still needed or any other factors
Maj.: “Calibration state” > inquiry into the financial impact of cohabitation and then decide if alimony should be modified or, rarely, terminated
>Ask:
1. Has cohabitant conferred benefits on alimony recipient? Reduce accordingly
2. Has alimony recipient conferred a benefit on cohabitant? Ex. not requiring cohabitant to pay rent b/c recipient is getting so much in alimony > courts will reduce accordingly

106
Q

POLICY Terminating Alimony: Cohabitation

A

Four problems w/ this approach:

  1. What does cohabitation mean? States all have different definitions and sex isn’t a necessary condition to establish cohabitation
  2. Finances? Could be anything the courts want to consider, including indirect contributions like shared chores
  3. Living arrangements and personal inquires that sometimes involve stalking and PIs
  4. Why are we authorizing this prying by a court? Just apply the changed circumstance modification rule, why should there be a certain rule for intimate relationships
107
Q

Alimony and Taxes

A

Old Rule: alimony is deducted by the payor and this could drop them into a lower tax bracket and the payee might not get pushed into a higher tax bracket so the alimony would be taxed at a lower rate.

New Rule: payor can’t deduct alimony and payee can’t count alimony as income

108
Q

Child Support

A

Gen. Rule: biology determines who is liable for child support and child is always going to come out on top of other inequities.

Gen. Rule: if parties live together when child is born, then support is presumed. If parties don’t live together, support begins at the birth of the child.

Gen. Rule: duty of child support ends at age of majority (usually 18) or the child has been emancipated [via marriage or joining the army]

109
Q

Blended Families and Child Support

A

In maj. of states there is no duty to support stepchildren.

Stepparents can take responsibility through:
-Adoption OR
-Doing something extraordinary to show you are taking responsibility for that child.
Ex. Stepparent rips up child support payments and says “I’ll take care of the child”

110
Q

Filial Responsibility Statutes

A

Children supporting their elderly parents. Law in 30 states but rarely enforced.

111
Q

Child Support: College Expenses

A

Ct looks at if the parents had stayed together and whether they were likely to pay for college to determine if parents should be obligated to pay college after divorce.
Very fact specific.

112
Q

Child Support: Children w/ Disabilities

A

Most states say parent is responsible for paying some support.
States differ on whether parental duty extends to child who was injured pre or post adulthood.

113
Q

Amount of Child Support Owed

A

Req.d states to use fed. guidelines as a rebuttable presumption but it’s up to state to decide the numbers to put into the guidelines.
Assumption is w/e parents would spend on a child in an intact family should be the same as after the parents split > use the fed numbers of what parents spend on raising children to get these numbers

114
Q

Amount of Child Support Models

A
  1. Income Shares Model (most popular): Continuity of expenditure > What parent would spend when in intact family is what they should spend after. Look at both incomes and then decide how much support child would get.
  2. POOI Model: just use obligor’s incomes to determine percentage
115
Q

Child Support: Imputed Income

A

Ct reasonably thinks you could be making more money, so ct imputes more income (based on community stds) onto parent as if that parent was making that higher salary. Can be imputed to either or both parents.
TEST:
1. are you un- or underemployed b/c of your lack of good faith or your choices? if yes = impute
2. are you trying to shirk your responsibilities? if yes = impute

116
Q

Deviating from Child Support Stds

A

Some states deviate from fed guidelines (which are just a presumption) when the noncustodial parent has extensive visitation.
POLICY:
-guidelines were built on less frequent visitation so obligor didn’t absorb as much ordinary costs
-there are abatement rules for parents who truly split visitation
-critics > this creates a bad incentive to restrict visitation b/c it could result in less money; there’s usually more burden on custodial parent anyway.

117
Q

Child Support: Low Income Parents

A
  • States differ on whether parents in poverty should have to pay support.
  • Concern on missed payments leading to arrears and discouraging parents from being w/ children
118
Q

Child Support: High Income Parents

A

Most guidelines cap out at a certain level but TREND is twd children having a right to share in their parent’s wealth or the std of living the parent COULD provide

119
Q

Modifying Child Support

A

Substantial change in circumstance and requiring child support would be unconscionable.

Bradly Amendment: no retroactive modification of past due support. If you get an arrear for support, can’t modify the arrear

120
Q

Child Support: Serial Families

A

Gen. Rule: Cts don’t consider existing child support payments when calculating income for a new child’s support order.

Gen. Rule: can’t reduce child support by having new children but can use it as a defense is the custodial parent tries to increase support

Ct will impute income to new stay at home mom w/ second set of children. Can’t deprive first set of children to provide for second set

121
Q

Child Support: Enforcement

A
  • Wage garnishment
  • Collected from income tax
  • Suspension of licenses (professional and drivers), passport
  • bounty hunters
  • booting car
  • criminal prosecution > desertion of child leads to ail time : concerns about jailing parents just for being poor
122
Q

Pre-Nup (Uniform Premarital Agreement Act > UPAA)

A

Not enforceable if :

  1. the resister proves the agreement wasn’t voluntary OR
  2. agreement was unconscionable when executed AND disclosure requirement wasn’t satisfied (3 ways to satisfy)
    a. Disclose all assets
    b. Waiving disclosure
    c. Having knowledge of other parties assets (ex. Living together so can see assets)

> Would enforce a unconscionable agreement is voluntary and disclosure

123
Q

Pre-Nup: ALI

A

Procedural Req.s:

  • Person who wants to enforce it (at time of divorce or death) has to show it was voluntary (no coercion or duress)
  • must be signed at least 30 days before marriage to have presumption of voluntariness AND parties had opportunity to seek separate counsel

Substantive Req.s:
-Requires courts to take a second look at the pre-nup if a second look is triggered: (OR)
>More than 10 years have passed
>Now there are children
>Substantial and unanticipated change in circumstances
-Second look is looking at fairness of pre-nup at the way things stand at the time of divorce (i.e. substantial injustice)

124
Q

Pre-Nup: Not Following Any System

A
  • Was it voluntary?
  • Was it unconscionable at execution?
  • Is it fair at time of divorce (aka second look that always occurs)?
125
Q

Pre-Nup: Confidential Relationship

A

Maj: “duty of utmost faith” begins at engagement or when marriage is entered into. Requires candor and obligation of disclosure about assets and disclosure.
-If no confidential relationship: “duty of inquiry” don’t have to volunteer info but can’t lie

126
Q

Pre-Nup: Non-financial Terms

A

Can be put in, but not always enforceable. But they do give a party an expectation and may impact money in a fault based divorce

127
Q

Post-Nups

A

Same rules as pre-nups

128
Q

Child Custody

A

-Gen. Std: best interest of child
Assume both parents are fit. Try and maintain status quo usually but in custody there isn’t really a status quo since family is breaking up.

129
Q

Child Custody: Tender Years Doctrine

A

Hist.ly how custody was done. Assumed that infants and toddlers should remain with mother. Older children were separated based on gender.
-Gender driven factors: old idea that children are best w/ the mother -> led to presumption that if mom didn’t have custody there was something wrong w/ her.

130
Q

Child Custody: Psychological Parent

A
  • One parent serves as the emotional anchor and the child should be w/ that parent.
  • Custody should be based on psychology and not biology
  • Encourage continuity for child
  • Used in lieu of best interest factors to cut down on amount of discretion ct has
131
Q

Child Custody: Best Interest

A
  • States have a long list of factors to consider

- Criticisms: judicial bias, unpredictable, too much discretion

132
Q

Child Custody: “Friendly Parent Factor”

A

If one parent is trying to create conflict between the child and the other parent, this will negatively impact CLs ability to get custody.
Doesn’t apply to DV situations.

133
Q

Child Custody: ALI

A
  • “Approximation std” > custody time after divorce should be the same as before the divorce = it worked then so it will work not. Uses a hist.L perspective on time spent w/ child which makes custody determinations more predictable.
  • Exception: children should have at least 8 days a month w/ noncustodial parent. Give weight to the decision of the parties
  • Criticisms: everything changes after divorce so hist. isn’t predictive of life after divorce. Not fair to dads b/c if mom is primary caregiver then this approach favors mom
134
Q

Child Custody: Best Interest Factors

A

Look at totality of circumstances
•Primary caregiver
•Health of parents
•Home environment
•Continuity of parent/care/keep siblings together
•Jobs
•Moral Fitness (not in UMDA)
•Religion
•Domestic Violence b/w parents but not twd children
-States differ on how much weight to give this factor
-Some have a rebuttable presumption that OP can’t get custody
•Child’s preference

135
Q

Child Custody: Sexual Morality

A

Nexus TEST: need to show a nexus b/t parent’s sexual behavior/moral conduct and harm to the child. Unless child has been harmed by parents behavior then it is not relevant Ex. having sex in front of child
Criticisms: can’t predict when child will be harmed, can only show the nexus after the harm has occurred and by then its too late.

**Maj: PER SE TEST: adultery has children and fact of it should be accounted for in custody, so all sexual conduct should be considered.

136
Q

Child Custody: Religion

A

If religious practices harm the child then it can be considered in custody determinations but if there is no harm then religion cannot be considered.

137
Q

Pets in Divorce and Custody

A

Treated more like family members than property

138
Q

Child Custody: DV

A
  • States differ on how much weight to give this factor > Some have a rebuttable presumption that OP can’t get custody.
  • Best practice to interview both parents alone and then each w/ child and interview friends, school etc.
139
Q

Child Custody: Child’s Preference

A

-Strong consideration of older child’s choice.
-RULE: has to be voluntary, consistent, and reasonable
Risks:
1. Process risks : increased involvement of child in proceedings
2. Outcome risks: child feels responsible or ignored in outcome of proceedings
3. Information risks: child’s opinion could be forced or judge could have bad info
TREND: conduct child interviews in chambers instead of open ct; BUT parents have a right to make decisions about their child so arg. that parents should know what child said

140
Q

Guardian Ad Litum

A
  1. (Maj.) Best interest attorney: advance whats in the best interest of child whether it was child’s choice or not OR
  2. CL directed attny: advance childs choice > trend to advance this one
    - can operate as a fact finder or attny
141
Q

Shared Parenting/Joint Custody

A

Joint Legal Custody: both parents make big life decisions
Joint Physical Custody: decisions for the day to day decisions like which bedtime book should be read
Some states presume it, other req. parents request it
TREND: push for shared time with children

142
Q

“Birdnesting”

A

Leave the child in the house and the parents switch off. Like “Splitting Up Together”

143
Q

Modification of Custody Arrangement

A
  1. Substantial change in circumstance AND

2. it’s in the best interest of the children

144
Q

Custody: Parental Relocation

A

Problems: Const.L rights for each parent > right to travel and to parent, visiting rights
Two Approaches:
1. State protects interest of primary custodian w/ a presumption that ct should allow relocation (older approach; ALI)
2.Balancing Approach > ct weighs factors and tries to balance a solution to parent’s rights and the best interest of child (more modern approach)
-Most cts look at good faith reason for relocating
-Decision is made case by case and court balances what is best for child and parents

145
Q

Custody: International Relocation

A 
Problems:
1. Culture
2. Distance
3. Jurisdictional  
Ct has to give permission for child to relocate > otherwise it is parental kidnapping
Hague Convention
146
Q

Hague Convention Goal

A
  • International Law about kidnapping children.
  • Goal: to secure the prompt return of children under 16 who were wrongfully removed from parent.
  • Strictly procedural > want to get child back ASAP
  • If country hasn’t ratified the Convention then its not enforced and the custodial parent is out of luck
  • If more than 1 year has passed since wrongful removal then child is not returned b/c child has adapted to new home
147
Q

Hague Convention Analysis

A
  1. Was child wrongfully removed (removal that violates a child custody order from that child’s state of habitual residence)?
  2. Exception/Defense to return?
    >more than one year has passed since child was removed AND child has settled into new home
    >parent trying to get child back has to have been exercising their rights at time of removal
    >grave risk of mental or physical harm to child if returned (poverty and being attached to parent don’t count)
    >mature child’s preference
    >No return if it would violate fundamentals of human rights (very narrow defense)
148
Q

Unmarried Cohabitants

A

States disagree about how to treat this. Three possibilities:

  1. Make it a crime > no financial rights or responsibilities at end of relationship b/c it’s a crime
  2. Contract rights > ability to make contracts, Ks are either express or implied
  3. Equitable claim: Unjust enrichment > “K implied in law” b/c ct imposes rights and responsibilities
  4. Status: beginning of a trend. If you meet certain objective criteria then you have certain rights and responsibilities > split prop. like divorce
149
Q

Unmarried Cohabs: Marvin Test (Maj. Rule)

A

TEST: Enforce an express agreement b/w cohabs except to the extent that the contract is for sexual services [be careful of saying “live like marriage” b/c that can also imply sex is a consideration]
•K implied in fact: conduct that signals an intent to create a contract
•Presume that couples intend to deal fairly w/ on another
•Also can recover for unjust enrichment

Counterarg: parties expressly try to avoid this scheme by not marrying, it’s an at will relationship and you both want to be able to walk away from the relationship. Ct is conscripting people out of an at-will relationship into marital style relationship

150
Q

Unmarried Cohabs: Resitution

A

Reasonable value of services rendered (minus) the reasonable value of support received = recoverable amount if it’s necessary to avoid injustice
-Look to intent > if it was a gift then no restitution

151
Q

Cohab v. Common Law Marriage

A

Common law marriage is a marriage and cohabitation is not. Cohab rights depend on a K, not a marriage relationship, rights only arise at end of relationship whereas C.L. marriage rights exist during the relationship too.

152
Q

Unmarried Cohabs: Status

A

Marriage is a status based on K that the states impose on parties once they are married (ex. Divorce laws). State imposes rights and laws on parties b/c of their status as cohabs. Property split like divorce.

WA Statute: “meritorious relationship” > look at duration, purpose, pooling resources, and “intent to form a stable relationship” NOT intent have rights assc.d with marriage.

153
Q

Unmarried Cohabs: ALI

A

“Domestic Partners” : two persons who aren’t married and share a primary residence and life together.
Two TESTS for DP:
1. Common household w/ common children AND For continuous period (2-3 years)
2. [Rebuttable presumption of DP] Common household AND For continuous period (2-3 years)

If two TESTS don’t apply then: Claimant must prove for significant period, couple shared:
•Primary residence AND
•Life together as couple

> Critics: duration cant be a proxy for commitment, it’s kinda the opposite since they aren’t getting married which is the ultimate commitment

154
Q

Domestic Violence Def.

A

“a pattern of assaultive and/or coercive behaviors, including physical, sexual, and psychological attacks, as well as economic coercion, that adults or adolescents use against their intimate partners”

155
Q

Battered Spouse Syndrome

A

Victim thinks they can talk abuser out of it or they think it’s their fault for being abused, abuser can be placated but then there’s bad abuse followed by the abuser apologizing and begging victim to stay with abuser.

156
Q

DV: Injunctive Relief

A

CPO: Civil Protection Order

  • Common to have emergency options so temporary CPOs are issued ex parte w/ no notice to respondent > doesn’t matter if victim leaves house
  • Permanent or final CPO needs to give notice to respondent and give a chance for a hearing on the CPO

Standing to seek CPO: either a victim of DV or has reasonable cause to believe s/he is in imminent danger of becoming a victim of DV

157
Q

Jurisdiction: Divorce

A

Domicile of at least one spouse and can satisfy the local residency requirement.

158
Q

Jurisdiction: Financial Issues in Divorce

A

Jurisdiction over both parties is required

159
Q

Jurisdiction: Custody (Uniform Child Custody Jurisdiction Act (UCCJA) )

A

-Only needs subject matter juris
-Deals with creating or modifying custody order
To create Custody order:
1. Home State: simple or extended
[if no or state refuses to exercise juris then go to next option]
2. Significant Connection
3. Last Resort Juris
4. Emergency Juris

160
Q

Jurisdiction: Custody (UCCJA) “Simple Home State”

A

-“Simple Home State”: state in which the child lived w/ parent/guardian for at least 6 consecutive months immediately preceding the custody order
-Exceptions: child is younger than 6 mons > use state where born; vacations aren’t considered
-TEST: look backwards 6 months from the date the FIRST custody petition is filed and ask whether the child has been in that state where the petition was filed for consecutive 6 months
>If yes then home state jurisdiction and only state that can issue the first custody order

161
Q

Jurisdiction: Custody (UCCJA) “Extended Home State”

A
  • Child and parent have not been in state for 6 months before first custody petition was filed so that’s not the home state
  • If parent moves w/ child to another state then parent remaining w/o child has 6 months to file a custody petition and keep home state status

-TEST:
1. Ask was there any state that qualified as a home state within that 6 month period?
>Look if they were in last state for 6 months and if so then that’s the home state
2. If yes, then ask if a parent still remains in this prior state
>If so, then prior state has home state jurisdiction

162
Q

Jurisdiction: Custody (UCCJA) “Significant Connection”

A
  • Substantial evidence to make custody determination
  • More than just physical presence
  • Can be more than one state and if petitions are filed in more than one state then use the “first in time” rule > state in which the first petition was filed takes the case
163
Q

Jurisdiction: Custody (UCCJA) “Emergency Jurisdiction”

A
  • This state has temporary authority if the child is in this state and has been abandoned, threatened or mistreated
  • Protective measure
164
Q

Jurisdiction: Custody (UCCJA) “Unclean Hands”

A
  • Purpose is to prevent kidnapping
  • A court must reject juris if it concludes it has juris b/c of unjustifiable conduct on part of parent
  • Exception for parent who takes child b/c they are fleeing DV
165
Q

Jurisdiction: MODIFYING Custody (UCCJA)

A
  • Continuing exclusive juris in issuing state
  • Lose it by:
    1. Everyone leaves that issuing state
    2. If state decides that there is no significant connection w/ child and parent anymore = not enough info in issuing state to make custody decision
  • TEST for being able to modify:
    1. Issuing state has lost jurisdiction AND
    2. Show that if this were an initial custody order new state would have juris [home state or significant connection state]
166
Q

Jurisdiction: Child Support (Financial) (UIFSA)

A

-Req.s both personal and subject matter juris
-Any child support order that is done by a state will be recognized in all other states
-Long arm provision
-Std: “continuing exclusive jurisdiction” > state that issued first child support order continues to be the only state that has juris to modify order so long as:
>At time the petition is filed anyone resides in the issuing state OR
>The parties consent
-Continuing Juris is lost?
>Ask where parties went:
1. All parties went to same state > that state has jurisdiction to modify
2. Parties went to different states > file where petitioner is a nonresident, aka where other parent is

Family Law (1 decks)

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